Broader mine safety reforms needed, experts say

President Obama discusses mine safety after an April 15 White House meeting with Labor Secretary Hilda Solis and MSHA chief Joe Main.

CHARLESTON, W.Va. -- On April 15, President Obama summed up the two-part narrative that has emerged in news coverage and political discussions of mine safety in the three weeks since 29 deaths in an April 5 explosion made Upper Big Branch the worst U.S. coal-mining disaster in 40 years.

In brief remarks from the White House Rose Garden, Obama harshly criticized Massey Energy as a "mine safety violator" with a "troubling" record. And, the president said efforts to protect Massey workers had been hampered by the company's "filing endless appeals" that delayed tougher enforcement actions.

But in interviews last week, top mine safety experts said that version of events -- while straightforward and perhaps politically popular -- is far too simple. Unless political leaders take a broader view, the experts said, major safety reforms are unlikely to emerge that would allow every coal miner to make it home safety at the end of every working shift.

Experts say mining deaths are too often accepted as part of life in a dangerous business. Citations and fines are likewise accepted, they say, while regulators don't always take tougher actions that the law allows to bring companies into line.

And too often, the experts say, the focus from the industry, its workers and government agencies is on meeting specific regulatory language, not in making mines as safe as possible.

"There are underlying questions that need to be addressed," said longtime safety advocate Davitt McAteer, who is leading an independent investigation of the Upper Big Branch disaster for Gov. Joe Manchin. "We need to look at the system and what went wrong with the system."

'. . . The tools we have available'

While efforts to find possible survivors of the Upper Big Branch explosion were still under way, Department of Labor officials began spinning the story. Media coverage was focused on increased safety problems at Upper Big Branch. Agency officials scrambled to explain why they didn't do more to end the growing violations.

On April 8, Greg Wagner, deputy assistant labor secretary for MSHA, called The Charleston Gazette to respond to a story posted online that questioned the agency's actions.

"We issued citations for every hazard we identified," Wagner said. "We held the operator accountable for correcting the problems that were cited. We feel that we used the tools we have available."

The next day, MSHA officials said their efforts at putting the Upper Big Branch Mine on a "pattern of violations" status -- a move that would result in more frequent mine closures for safety problems -- were stymied when Massey repeatedly appealed MSHA citations, keeping them from becoming final orders.

Four days later, though, on April 13, MSHA revealed that it was an agency "computer glitch" -- and not Massey's appeals -- that allowed the Upper Big Branch Mine to avoid getting a "pattern of violations" warning letter.

Still, Labor Secretary Hilda Solis and MSHA chief Joe Main focused on the industry's increased appeals, and a backlog of undecided appeals, when they submitted a preliminary report on Upper Big Branch to Obama during the April 15 meeting.

"Companies' use of litigation to avoid a pattern of violations finding removes an important tool from MSHA's toolbox, and forces the agency to rely on citations and the threat of fines as its primary tool to encourage even the most problematic mines to reverse their safety problems," the report said.

Tony Oppegard, a former MSHA staffer and longtime mine safety attorney, said the focus on the appeals backlog and its impact on the "pattern of violations" status is "a red herring."

Under federal law, operators must be cited and enforcement escalated if an operator "has a pattern of violations of mandatory health or safety standards . . . which are of such nature as could have significantly and substantially contributed to the cause and effect of coal" health and safety hazards.

Oppegard said MSHA had for years refused to consider putting companies on the violations pattern status. When the Bush administration began to use the tool in 2007, it wrote a complicated, 10-part criterion that Oppegard said made it unlikely any company would ever be put on that status. Also, MSHA instituted a program to first send warning letters to give companies with repeated violations more time to improve before facing tougher enforcement.

"I'm not saying a backlog of appeals is a good thing," Oppegard said, "but the pattern of violations has been in the law since 1977, and the backlog only started two or three years ago -- and before that, there was never a single company put on a pattern of violations."

'We need to get to zero'

On Sept. 21, 2001, 13 miners died in a series of explosions at the No. 5 Mine of Jim Walter Resources Inc., in Brookwood, Ala. It was the deadliest mine disaster in the United States in 17 years, and it happened at a mine where workers had the additional safety protections provided by the United Mine Workers union.

After the disaster, an internal MSHA team found that agency officials missed numerous problems leading up to the explosions. Over the years, similar reviews almost always find the same kinds of problems following coal mine disasters.

Federal regulators frequently have overlooked major violations of safety rules intended to protect miners. They have declined to take harsh enough enforcement action or ensure that problems were quickly fixed. Agency supervisors have not trained inspectors or made MSHA requirements clear to them. MSHA has not always written additional rules to protect against newly discovered mining hazards.

Still, most miners who die on the job are not killed in huge explosions, fires or underground floods. They die one at a time, crushed by heavy equipment, ground up by runaway machinery, buried beneath collapsed mine roofs. Almost every time -- in nine out of 10 deaths, according to MSHA reports -- miner deaths could have been avoided if the operators they worked for had complied with the law.

Some mine company executives say the industry needs to focus on changing this, and working toward a goal of no deaths or injuries in the mines.

During an August 2007 speech to the Utah Mining Association, Consol Energy Inc. President J. Brett Harvey called for such a campaign.

"We need to change the paradigm, and we need to change it now," Harvey said during the speech in Park City, Utah. "What industry must change is our incremental approach to safety improvement because it creates an unintended tolerance to accidents. We need to get to zero."

Two weeks after Harvey's speech, 35-year-old miner Brent Reynolds was killed in a roof fall at Consol's Bronzite Mine in Mingo County. MSHA investigators blamed the accident on the company's failure to properly support the mine roof.

It turned out, though, that MSHA officials had missed three required quarterly inspections at the Bronzite Mine prior to Reynolds' death. Later in 2007, MSHA officials said that staffing and budget cuts had led them to fall far behind on legally required inspections at mines across the country and especially in the coalfields of Southern West Virginia.

Then-MSHA chief Richard Stickler instituted what he called a "100 percent plan" for the agency for the first time in its history to comply with the mandate of Congress that all underground coal mines be inspected in their entirety four times a year. Sen. Robert C. Byrd, D-W.Va., was instrumental in getting MSHA more money to hire new inspectors and pay overtime to complete this goal.

On March 30, less than a week before the Upper Big Branch explosion, the Labor Department's inspector general issued a report that found MSHA had not made sure its inspectors were properly trained to do their jobs.

'A bunch of baloney'

After 12 miners died in a January 2006 explosion at International Coal Group's Sago Mine in Upshur County, the national media and political leaders were shocked to learn that MSHA had fined the company as little as $99 for violations agency inspectors deemed "significant and substantial."

Congress responded with language in the MINER Act to give MSHA authority to fine companies up to $220,000 each for violations of "a reckless or repeated nature."

In 2008 and 2009, as safety problems and violations were increasing at Massey's Upper Big Branch Mine, MSHA never used this ability to seek tougher penalties.

Also, while MSHA maintains it uses "all of the tools" available to it, the agency has never used a provision of mine safety law that allows it to go to court and ask a federal judge to shut down a mine that inspectors believe "constitutes a continuing hazard to the health and safety of miners."

"This whole thing about MSHA's hands being tied is a bunch of baloney," said Celeste Monforton, a former agency staffer who now teaches public health and workplace safety courses at George Washington University. "It will be an unfortunate missed opportunity if the administration and Congress make this out just as something about Massey Energy and suggesting that the agency's hands are tied."

'A refreshing change'

In late October, the U.S. Senate confirmed Obama's pick to run MSHA: Longtime United Mine Workers safety director Joe Main.

Safety advocates praised the move. The UMW said Main would "bring a refreshing change to an agency that for too long has favored production over strong enforcement of workplace safety and health in America's mines."

To date, Main's major initiative has been a new plan to "end black lung," a disease that has killed 10,000 coal miners across the country in the past decade alone. However, in his first rulemaking agenda, issued in December, Main reversed an initial Obama administration plan that promised to actually lower the legal limit for exposure to coal dust that causes the disease.

Main also announced an MSHA initiative called "Rules to Live By," in which inspectors would ensure that mine operators are complying with a dozen standards linked to a majority of mining deaths.

The program received a cool reception from mine safety advocates. Monforton noted that mine operators are "already legally bound" to follow those standards and that MSHA inspectors are already supposed to make sure that happens. Oppegard, an outspoken supporter of Main, said "Rules to Live By" was "really nothing different than anything we saw in the last 25 years."

Sunday afternoon, President Obama and Vice President Joe Biden are scheduled to attend a memorial service in Beckley. Obama will eulogize the 29 miners who died in the Upper Big Branch explosion.

Obama has focused on Massey and the appeals backlog, but the president also said in his April 15 remarks that, "While there are many responsible companies, far too many mines aren't doing enough to protect workers' safety."

Obama touted his appointment of Main, contrasting it to the Bush administration, when MSHA was "stacked with former mine executives and industry players."

"Even so, we need to take a hard look at our own practices and our own procedures to ensure that we're pursuing mine safety as relentlessly as we responsibly can," the president said. "I refuse to accept any number of miner deaths as simply a cost of doing business."